Mgema

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO.14398 OF 2024 (Arising from Land Application No.246 of2013, of the District Land and Housing Tribunal for Kinondoni) PETER CHAD MGEMA.................................................. APPELLANT

VERSUS LUSAJO WILLY.................................................. 1st RESPONDENT HENRY MWALUKASA........................................ 2nd RESPONDENT

JUDGMENT Date ofLast Order:04.07.2024 Date of Judgment:31.07.2024 T.N. MWENEGOHA, J: This Appeal emanates from the District Land and Housing Tribunal for Kinondoni, vide Land Application No.246 of 2013. The dispute is on an unsurvayed land, measuring one and quatre acres, located at Kunguru Goba Kizundi, within Goba Ward, Dar es Salaam. The decision of the Trial Tribunal was not in favour of the appellant, hence he filed the instant Appeal based on the following grounds; - 1. The Trial Tribunal had no jurisdiction to entertain the incompetent application owing to improper description of the subject matter.

2. That, the proceedings of the Trial Tribunal are fatal for being tainted by serious illegalities, irregularities and i impropriety as the trial chairperson failed to proceed with assessors without assigning any justifiable reasons.

3. The proceedings of the Trial Tribunal are fatally irregular for failure to consider determine and frame issues for the counter claim.

4. The Trial Tribunal erred in law and in fact for basing its decision on grounds of fraud which was not proved.

5. The Trial Tribunal erred in law and in fact by shifting the burden of proof from the respondent to the appellant.

6. The Judgment of the Trial Tribunal is bad in law for not containing the opinion of assessors.

7. The Trial Tribunal erred in law for awarding special damages without any strict proof of the same. The Appeal was heard through written submissions. Advocate Mganga Paul, appeared for the appellant, the 1st respondent appeared in person, while the 2nd respondent enjoyed the legal services of Advocate William Anthony Changoma. Arguing on the 1st ground, Mr. Paul was of the view that, suit property was not properly described sufficiently to identify it. That, the way the subject matter was described in the Application, does not distinguish it with other lands in the locality. The description is too general instead of being specific and definite. That, the applicant at the Trial Tribunal, now the 1st respondent should have included the bounderies as stated in Twapasyaga Yotam Kasalwike versus Elisi Kasanga, Land Appeal No. 08 of 2022, High Court of Tanzania(unreported) and the case of Daniel Dagala Kanuda versus Masaka Ibeho and Others, Land Appeal No. 26 of 2015, High Court of Tanzania at Tabora (unreported). 2 He went on to argue on the 2nd and 6th grounds together that, the trial: of the matter went on without assessors from the 11th September 2014 up to the 26th September 2023. That there are no reasons given on why the trial Tribunal decided to proceed with the matter in absence of the assessors. This is contrary to the law as provided under section 23(1) and (2) of the

Land Dispute Courts Act, Cap 2016 R.E 2019. Also, Regulation 19(2) of the Land Courts (The District Land and Housing Tribunal Regulations, G.N 174 of 2003 and also the case of Emanuel A. Majebele (Adminstrator of the Estate of the late Ester Kabeno Karume) versus Anthony Francis Spila & Another, Land Appeal No.292 of 2021, High Court Land Division at Dar Es Salaam(unre ported). Replying on the first ground, the first respondent maintained that, the subject matter of the suit was properly identified at the Trial Tribunal. After all, the appellant in his Written Statement of Defence incorporated a counter claim on the same subject matter, hence his first ground of Appeal is an after thought. That, the case of Twapasyaga Yotam Kasalwike versus Elisi Kasanga, (supra), cited in supporting the arguments of the appellant's counsel on this are distinguishable. Regarding the second and sixth grounds together, the first respondent maintained that, the Trial Tribunal was correct to proceed without assessors as provided for under section 23(3) of the Land Disputes Courts Act, Cap 216 R.E 2019. Above all, at page 28, first paragraph of the impugned Judgment, the Trial Chairperson stated the reasons as to why the said Judgment has no opinion of assessors, because they were no longer in the position of assessors at the time the Judgment was given. These arguments were well supported by Mr.

Changoma, advocate for the 2nd respondent in his submissions. 3 In his brief rejoinder, the appellant's counsel reiterated his submissions in chief on grounds 1,2 and 6 above and insisted that, the same have merits and should be allowed. On my part, I prefer to deal with these three grounds of Appeal first, before I venture into discussing the other four remaining grounds. On the first ground, the appellant faulted the Trial Tribunal for entertaining the matter without considering the fact that the subject matter of the case was not properly described. It is settled that, in disputes involving immovable properties, the subject matter should be properly and sufficiently described to enable the same to be identified and distinguished from other properties at the locality. This is according to Order VII Rule 3 of the Civil Procedure Code, cap 33 R.E 2019, which states as follows;- "Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and, in case such property can be identified by a title number under the Land Registration Act, the plaint shall specify such Title number". In the case before the Trial Tribunal, looking at the Application, filed by Lusajo Willy, the 1st respondent here in above, at paragraph 3, it reads.... "The suit premise is unsurvayed piece of land with magnitude of one and

quarter acres of land located at Kunguru area Kizundi, Goba Ward in Kinondoni Municipality, Dares Salaam". As argued by Mr. Paul for the appellant, this description of the suit premise is insufficient to identify it. It does not distinguish the suit land from other land at the locality. It is a blanket description which has been rejected in a number of authorities, to name a few, the case of Daniel Ndagala 4 Kanuda versus Masaka Ibeho and 4 others, (supra). As the land in I dispute is unsurveyed, the applicant, now first respondent, should have stated the bounderies, to make the description more specific and definite as argued by Mr. Paul. The Court in a number of authorities has explained the necessity of a disputed property to be well described in land matters. It has emphasised that, the purpose of proper description of the suit land ■ in the case, is to enable a focused execution of the Decree of the Tribunal/Court when due, as elaborated in Twapasyaga Yotam Kasalwike versus Elisi Kasanga, (supra) and Daniel Ndagala Kanuda versus Masaka Ibeho and 4 others, (supra). For these reasons, what the Trial Tribunal did in respect of Land Application No.216 of 2013, was null and void. The fact that the appellant raised a counter claim over the same subject matter being described the way it was, as claimed by the respondents in their submissions above, does not make such description

to be proper. The first ground of Appeal is therefore allowed as it has merits. Coming to ground 2 and 6 on proceeding with hearing assessors and composing the Judgment without assessors' opinion. I have gone through the records of the Trial Tribunal and found what Mr. Paul is claiming is true. That from the 11/09/2014 when the defence hearing commenced, the Trial Tribunal set without assessors. The record do not have any reasons as to why the case proceeded without assessors. The trend continued up to the date when the impugned decision was delivered on 24/1/2024, without assessors. The said Judgment has shown that, they were no longer in their position at the time the Judgment was being delivered, but the same Judgment and proceedings is silent as to why the case went on hearing without the assessors since September 11, 2014. Both respondents in their submissions have taken a refuge on section 5 23(3) of the Land Courts Disputes Act to defend the position of the I trial Chairperson to proceed without assessors. But the Trial Chairperson ■ could have demonstrated the reasons and put them on records, if wished to invoke the said powers given under section 23(3) of the Land Court Disputes Act, Cap 216 R.E 2019. His actions have vitiated his Decision, J hence the same is again void. The second and sixth grounds are also' allowed. For the finding on ground 1, 2 and 6 above, I see

no need to continue discussing the remaining grounds of Appeal (3,4,5 and 7). The said findings are capable of disposing the entire Appeal to its finality In the event and basing on the reasons and findings of the 1st ground of appeal, I use my powers given under section 43 of the Land Disputes Courts Act, Cap 216, R.E 2019 and proceed to revise and nullify the whole proceedings of the Trial Tribunal, vide Land Application No.246 of 2013, quash its Decision and aside its Orders. Parties are set on their previous position before the Decision of the Tribunal. If any of them wish may institute a fresh suit. No Order as to costs. 31/07/2024 6